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Musammat Sohan Bibi Vs. Musammat Hiran Bibi and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtAllahabad
Decided On
Judge
Reported in1Ind.Cas.180
AppellantMusammat Sohan Bibi
RespondentMusammat Hiran Bibi and ors.
Excerpt:
limitation act (xv of 1877), schedule ii, article 125 - hindu law--compromise by widow in respect of her husband's property--alienation--reversioners not bound--suit by reversioner--limitation. - - 6. as to the plea of limitation the transaction being an alienation, article 125 of schedule ii of the limitation act, 1877 clearly applies in so far as the claim relates to immoveable property. as the suit was brought within 12 years of the date of the compromise and the decree, it is clearly within time as regards the immoveable property claimed......is alleged that after his death manki bahu under the authority given to her by her husband adopted babu parsottam das the plaintiff, sohan bibi, is a daughter of parsottam das and the defendant bindesri bahu is his widow. parsottam das left another daughter mohan bibi who is one of the defendants to the suit. manki bahu died in 1893. in 1895 punno bibi one of the daughters of babu harish chander brought a suit against bindesri bahu and against her own sisters for a declaration of her right to a third share in certain government securities of which bindesri bahu had taken possession and also in certain moveable property. the parties to that suit, namely, punno bibi, bindesri bahu, makundi bibi and hiran bibi entered into a compromise on the 2nd of april 1896 and in accordance with the.....
Judgment:

1. The facts of the suit which gave rise to this appeal are these--one Babu Harish Chander died leaving him surviving a widow Must. Manki Bahu and three daughters Hiran Bibi, Makundi Bibi and Punno Bibi. It is alleged that after his death Manki Bahu under the authority given to her by her husband adopted Babu Parsottam Das The plaintiff, Sohan Bibi, is a daughter of Parsottam Das and the defendant Bindesri Bahu is his widow. Parsottam Das left another daughter Mohan Bibi who is one of the defendants to the suit. Manki Bahu died in 1893. In 1895 Punno Bibi one of the daughters of Babu Harish Chander brought a suit against Bindesri Bahu and against her own sisters for a declaration of her right to a third share in certain Government securities of which Bindesri Bahu had taken possession and also in certain moveable property. The parties to that suit, namely, Punno Bibi, Bindesri Bahu, Makundi Bibi and Hiran Bibi entered into a compromise on the 2nd of April 1896 and in accordance with the compromise a decree was passed on the 28th of May 1896. Under the compromise and the decree certain Government promissory notes were partitioned and moveable and immoveable property was divided and the rights of the parties to the suit in respect of that property were declared. The present suit was brought on the 16th of January 1906 by Sohan Bibi one of the daughters of Parsottam Das for a declaration that the effect of the compromise and the decree referred to above was to transfer the property of Babu Harish Chander and that such transfer was null and void so far as it was prejudicial to the rights of the plaintiff as one of the reversioners to the estate of Babu Parsottam Das. She asked for other reliefs to which, it is not necessary to refer.

2. The defence to the suit was that Babu Parsottam Das had never been adopted by Manki Bahu and the plaintiff had no right to sue, that the compromise and the decree referred to above were binding on the plaintiff and that the claim was barred by limitation. Other pleas were also put forward but we need not refer to them,

3. The learned Judge who tried the suit framed various issues but he took evidence and recorded finding's only in respect of the first five issues. He came to the conclusion that Parsottam Das had been adopted by Manki Bahu with the permission of her husband but he held that the compromise and the decree passed on the basis of it were binding on the plaintiff and precluded her from maintaining the present suit. He also held the claim to be barred by limitation and accordingly dismissed the suit.

4. The plaintiff has preferred this appeal and the first contention on her behalf is that the compromise and the decree amounted to an alienation of the family property by Bindesri Bahu and gave a light to the plaintiff to bring the present suit for the protection of her interest as reversionary heir.

5. The question is concluded by the decision of this Court in Gobind Krishna Narain v. Khunni Lal 29 A. 487. In that case it was held that a compromise made by a person holding a Hindu widow's estate in the property of her deceased husband is not binding on the reversioners even though it has been followed by a decree of Court and that the reversioners can only be bound by a decree made after full contest in a bon fide litigation. In the present case the previous litigation was not decided after contest and the matter in dispute was only settled by a compromise entered into by Bindesri Bahu who held only a widow's estate if any. In Ram Sarup v. Ram Dei 29 A. 239 it was held that a compromise of this nature amounted to an alienation of the property dealt with by it. Having regard to these rulings the plaintiff 's suit was maintainable and the Court below was wrong in holding that she was precluded by reason of the compromise and the decree from sustaining her claim. We may observe that on this point the learned advocate for the respondent has addressed no argument to us.

6. As to the plea of limitation the transaction being an alienation, Article 125 of Schedule II of the Limitation Act, 1877 clearly applies in so far as the claim relates to immoveable property. As the suit was brought within 12 years of the date of the compromise and the decree, it is clearly within time as regards the immoveable property claimed. As to the moveable property claimed that article does not apply and the claim to have the alienation set aside is time barred.

7. The learned Advocate for the respondents, however, attempted to support the decree of the Court below by contending that it had not been proved that Parsottam Das was not validly adopted by Manki Bahu. He urged that the finding of the learned Judge on this point was erroneous. We do not agree with this contention. The adoption is alleged to have been made in the year 1860. On the 10th of May of that year Manki Bahu submitted a petition to the Agent to the Governor General at Benares in which she said that she had in obedience to her late husband's order and with a view to continue the management of his estate and in order to preserve the continuity of the family lineage,' taken in adoption one Babu Sita Ram whom she had named Babu Parsottam Das, and she prayed that the name of the adopted son might be entered in the records of the Agent to the Governor-General in the place of the name of her husband Babu Harish Chander. The allegations contained in this petition were affirmed in a later petition submitted by her on the 13th of September 1871. In both these petitions, not only did she state that she had adopted Babu Parsottam Das, but that she had authority from her husband to adopt a son. In addition to these petitions we have the evidence of two witnesses, which proves that Babu Harish Chander gave authority to his widow to adopt a son. Babu Harish Chander was in the service of Narain Rao Peshwa and died of cholera at Chitrakot. The witness Ragho Panth deposes that at the time of his death Harish Chander said to Narain Rao that his wife was pregnant that if a son was born to her he would be the owner of his estate and that if the child did not happen to be a son, a boy should be adopted to perpetuate his (Harish Chander's) name. Afterwards Narain Rao Peshwa sent a man to Benares where Manki Bahu lived, to inform her of the authority given to her by her husband and this is proved by the witness Debi Dat. Having regard to this evidence and to the fact that ever since 1860 the validity of the adoption had never been questioned we may reasonably presume that the adoption made under authority given to Manki Bahu by her deceased husband and that Parsottam Das was validly adopted. We are, therefore, unable to accede to the contention of the learned Advocate for the respondent and we find in concurrence with the Court below that Babu Parsottam Das was validly adopted and the plaintiff as one of his daughters is entitled to maintain the suit.

8. As the learned Judge did not try the other questions which arise in the case and as we have disagreed with his conclusion upon the question of the plaintiff 's right to maintain the suit and also upon the question of limitation we must send back the case to the Court below for trial of the other question. We accordingly, allow the appeal, set aside the decree of the Court below and remand the case to that Court with directions to re-instate it under its original number in the register and dispose of it according to law, regard being had to the observations made by us in this judgment. The appellant will have her costs of this appeal including fees on the higher scale. All other costs will follow the event.


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